The 8th Amendment

What is it and why is it in our Constitution?

Access to abortion is one of the most hotly-debated issues in Irish politics. Lots of people have very strongly-held opinions on the subject, and they all seem to come down to the position of the 8th Amendment. But what does the amendment actually say, and why is it important?

What the 8th Amendment means

The Eighth Amendment is the common term for Article 40.3.3 of Bunreacht na hÉireann, the Constitution of Ireland. It deals with the rights of pregnant people and foetuses under Irish law, saying the following:

“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate that right.”

This means that the Constitution bans legal abortions in Ireland except where the pregnant person’s life is in danger. This includes if she is at risk of suicide. However, the Constitution also guarantees the rights to access information about abortion and to travel to a country where abortion is legal.

How did we get here?

The article was added to the Constitution after a referendum in 1983. At the time, nearly 67% of Irish voters chose to support it. Abortion had already been illegal in the country since at least 1861, but the passing of the 8th Amendment meant it could never be legalised without another vote of the people.

Since then there have been two further Irish referendums on the subject of abortion. In 1992, voters chose to alter the amendment to guarantee the right to learn about and travel for legal abortions in other countries. Then in 2002, the Irish electorate rejected a proposal to ban abortions including in cases where a pregnant person’s life was threatened by suicide.

Legal abortions for pregnant people whose lives are threatened by pregnancy were first permitted by the government in 2013. This is due to the Protection of Life During Pregnancy Act.

The debate over the 8th

The Eighth Amendment has always been controversial, and recently both sides of the debate have been increasingly vocal about its future.

The “pro-choice” movement argues that the amendment should be repealed, or deleted from the Constitution. They say women and pregnant people should have full control over their own bodies and that not allowing abortions is inhumane. They argue it is particularly inhumane for a person to be denied an abortion when they have become pregnant as a result of rape or incest, when a pregnancy is a threat to their health, and when the foetus has a “fatal foetal abnormality” and won’t be able to live outside the womb.

The “pro-life” movement, on the other hand, argues that the 8th should stay. They say that a foetus is a full person and should have human rights from the moment of conception up to birth and beyond. The pro-life view is that the amendment has prevented thousands of abortions since 1983 and that this is a positive thing for the children who otherwise might not have been born.

Ireland’s abortion laws are very different to many other counties. Britain, America and almost all European countries have more liberal laws that permit abortions in a range of circumstances that vary from place to place

Citizens' Assembly

The question of whether to have another referendum on the 8th Amendment is a heated issue in Irish society. In 2016, the government set up a Citizen’s Assembly to debate this and other issues. The Assembly was made up of 99 randomly-selected people from across the country and chaired by a Supreme Court judge. This group’s job was to consider the issue and recommend to the government whether to keep, change or repeal the 8th Amendment.

The results of the Citizens' Assembly were as follows:

87% of the members voted that Article 40.3.3 of the Constitution should not be retained in full.

56% of the Members voted that Article 40.3.3 should be amended or replaced.

57% of the Members recommended that Article 40.3.3 be replaced with a Constitutional provision explicitly allowing the Oireachtas to legislate on the issue of abortion.

Joint Committee on the Eighth Amendment of the Constitution

Following on from the Citizens' Assembly, the report was referred to a Joint Committee in the Oireachtas for consideration. The committee brought together T.D.s and Senators from different political parties, as well as independents, to consider the report from the Citizens' Assembly and make a recommendation to the Dáil.

The recommendations made by the Committeee included:

Article 40.3.3 of the Constitution should be repealed

Termination of pregnancy, with no restriction as to reason, should be allowed with a gestational limit of 12 weeks.

Termination of pregnancy should be allowed where there is a fatal foetal abnormality, that is likely to result in death before or shortly after birth, with no gestational limit.

Announcement of a 2018 referendum.

It was announced on Monday, 29th January 2018, that the government is to hold a referendum to repeal the 8th Amendment. The referendum would allow for the removal of the 8th Amendment from the constitution, and the introduction of an ‘enabling clause’ which would allow the Oireachtas to legislate for abortion in Ireland - something they are restricted in doing now because of the 8th Amendment.

The referendum is expected to be held in late May 2018. Want to have your say? Make sure you register to vote.